Legal Principles in Property Law Matters

This article covers various legal principles in property law matters such as common law, contract components, types of leases, mortgage rights and obligations, and more. It also explains the Torrens system and GST's impact on property.

BSBLEG512 Apply legal principles in property law matters
W1 In simple terms explain ‘common law’ For your state where would you find copies of: Workplace
Relations Act Equal Opportunity Act Anti-discrimination Act Occupational Health and Safety Acts.
Answer -A Common law is an unwritten structured body of laws and legislation which are based upon
the judicial precedents. It includes the legal rules and principles which were driven from the decisions
of Royal Court of England. In my state; The Workplace Relations Act 1996, Equal Opportunity Act
1984, Anti-discrimination Act 1998 Occupational Health and Safety Act 1985 all are covered under
National Labour Law Profile.
W2 what are the six aspects of a contract that makes it valid or enforceable?
Answer — The aspects of a contract which makes it enforceable are Offer, Acceptance, Intention,
Legality, Capacity and consideration.
W3: what other avenues/methods are there to organise meetings if face to face meetings cannot be
done?
Answer –If face to face meetings cannot be organised following methods can be used:
 Messaging
 Emailing
 Telephone conferences.
 Video conferences
 Web conferences
1 Explain the difference between real and personal property What is the difference between ’property
in’, ‘title to’, and ‘ownership of’ ?
Answer — A real property is the land or the things that are attached to a land such as trees. The
personal property on the other hand, refers to chattels (tangible property) such as clothing or purse and
intangible which can be moved such as bank account (Bridge and et.al., 2017).
The terms 'Property in', 'Title to' and 'Ownership of' all mean the same i.e. the right to own or
possess something, and they all are applicable to both the personal and real properties.
2 What other professionals are involved in the purchase/sale of a property?
Answer — The professional who are involved in the purchase or sale of a property are:
 Insurance companies
 Conveyancer

 Valuer
 Building inspector
 Lender
 Real estate agent
 Broker
3 What is someone referring to when they talk about land that is “less than freehold”?
Answer — Less than freehold is the estate held by the leaser or one who pay the rent of that estate and
who are capable of certain duration.
4 What is the most important aspect to confirm before you start the conveyancing of any land?
Answer –The most important aspect for the practitioner is to ensure by investigating that the
conveyancing transaction which is to be done for the vendor or a purchaser is of good title to the
property.
5 The conveyancer’s duty to investigate title includes searches and enquiries. These duties can be
divided into what four search tasks?
Answer — The conveyancer's duties regarding searches and enquiries are the typical responsibilities
of advising the client about the terms of the contract. The Conveyancer must investigate the vendor's
title on behalf of their client. These duties can be divided into following tasks:
 Searching
 Disclosures
 Physical inspection.
 Obtaining certificates.
6 Explain the following:
-seised -profit e prendre
Answer — Seised: Any person who is registered as the proprietor or the tenant of a land is 'Seized' of
the nearest equivalent of legal owner of the land.
Profit e prendre: It is generally a right to take away something grown, produced on the land or on a
part of that land who is owned by some else.
-hereditament
Answer —It refers to the items of a property, land or a building even rented land which are
inheritable.
-cestui que trust

Answer — It is used to describe the beneficiary of a property which is held in trust or whose benefits
are entitled to another person who possesses property.
Section 126 of the Victorian Instruments Act, 1958
Answer — The section 126 of Victorian Instruments Act, 1958 establishes a rule a contract of sale is
enforceable only when it is in writing.
-The different ways to discharge a contract
Answer — A contract can be discharged in following ways:
 Discharge by performance
 Discharge by agreement
 Discharge by breach of contract
 Discharge by all the parties
 Discharge by frustration of any party
 Discharge by occurring of events which makes the contract impossible to complete.
-Strata title
Answer — It is a type of ownership or the title issued for stratified properties i.e. shared ares or units.
-Leasehold title and ‘peppercorn rent’
Answer —Leasehold title: It provides the rights of possession to owner of the property or estate.
Peppercorn rent: It refers to the nominal rent or a token of rent of a property or estate.
7 -Explain the Torrens system and what happened prior to that system in regards to property
ownership.
-Identify the legislation that applies to the Torrens system in your state.
-Discuss the aim of the Torrens system
Answer -A Torrens system refers to the systems of registration of land title. It is a system in which a
state creates and maintains the register of land holdings so that they can be served as an evidence of
the title to the person who is registered as the proprietor on the register. Prior to Torrens system, the
property ownership was handled under the system of Common Law.
The Torrens systems used in my state is Transfer of Land, 1958 (Vic).
The aim of Torrens systems is to certainty of title/ ownership to the owner of the land. It is also
prepared so that it can be used as an evidence of title/ownership.
8 Title of ownership in real property generally means tenure and estate. Identify five (5) titles of
tenure recognised under Australian real property law and briefly discuss each of the four.
Answer –The titles of tenure recognised under the Australian Real Property Law are: Freehold, Non
Freehold Land, Unallocated land, State leasehold and Naive title.Freehold: It is a deed of grant issues when the land is set apart from the State and its particulars are
recorded in the Freehold Land Registered for creating an imperishable title (Myking, 2020).Non Freehold Land: It is a land which is not freehold and includes all the land in Queensland
involving below high water marks and all the other unallocated State lands.

Unallocated land: It is land contracted to be provided in fee paid by the State. It can include a road or
national and, conservation parks, timber service, state forests and reserves.State leasehold: All the State land is controlled by the Land Act 1994, and the Department of
Resources and environment expect from the leases or licenses issued by other departments of the
government.
9 How does an open contract differ from a standard contract, and what are the two different types of
formal contract?
Answer — An open contract is the contract which does not explain all the terms or the entire
agreement and only terms which are explained are the identities of the parties and the terms of which
can be negotiated easily. However, the standard contract is a contract which does not allow the parties
to negotiate (Radović, 2019.).The two types of formal contracts are:
 Contracts of record like a court order
 Contract under the seal which is also known as deeds which is signed, sealed and delivered.
10 To be enforceable a contract must have six components. What are they and how does this differ to
an enforceable memorandum?
Answer —A contract must have the six components which are: Offer: It is the proposal which contains specifics of the terms for one party to create an
agreement with the other party. Acceptance: The agreement given to an offer is acceptance. Intention for creating legal relationships: It refers to the willingness of a party to accept the
legal consequences to enter the contract. Legality and capacity: Legality means the agreement formed by parties must convey a legal
purpose only. Capacity on the other hand conveys that parties must be capable to the contract. Certainty: The purpose for which contract is formed must contain certainty for the necessary
terms.

Consideration: It is something beneficial, which is given to the person who is obliged to do
something for the person who makes an offer (Rana, 2020).
A memorandum does not include legally enforceable agreements. However, to enforce a
memorandum it must contain: all materials terms, names of all the parties, subject matter and the
consideration.
11 How is property affected by GST?
Answer —The provisions of GST are also relevant in dealing of the property. It provides what should
be included in real property i.e. any interest in a land, right to call for interest in right over a land and
a license to occupy a land or rights related to the land. It is also applicable to supply of new residential
properties by the registered entities for GST. Although, the vendors does not have to charge GST on
supply necessarily.

12 What are file notes- and when/how would you use them?
Answer —A file note is the client note or the diary note which is prepared to record the important
events which occurs between the supplier and the client. They can be used to complete the written
narration of interactions with the clients over time. It can be used as tool to read before reentering to a
discussion with the client to update the supplier/seller on the situations as the last interaction.
13 Distinguish between cash and terms contracts
Answer –A cash contract is a financial contract. In cash contract on party agrees to buy the certain
quantity of a good or commodity of vendor or supplier on a predetermined time, whereas a term
contract occurs when the buyer makes payment to the vendor or the supplier after the contract has
been executed but not settled.
14 The definition of a “mortgage” varies from state to state under the respective legislation of each
states and territories of Australia. In your own words briefly explain your understanding of the term
“mortgage”. Explain a second mortgage and why they are not that popular any more
Answer —Mortgage is a kind of loan which is used to fiance a property (Cuming, 2018). They are
secure loans where the borrower of the loan promises collateral (House) to the lender of the loan in
the situations where the borrower stops making payments. Second mortgage arises when the borrower
is no longer able to pay the payments of loan then the collateral (house) is sold to pay off the loan
debt. They are not popular because they are usually higher in rates than the rates of the primary
mortgage, and they are riskier for the lender.
15 What are the legal entities that can enter into an enforceable contract?
Answer –Any entity (Corporations and individuals) can enter a legal enforceable contract expect the
minors and mentally incompetent entities who lack the capacity to enter a contract (Golding, 2020).
16 Why is Section 126 of the Victorian Instruments Act 1958 relevant to the duties of a conveyancer?
Answer –A Conveyancer have to research, write and maintain the legal documents related to the land
and land titles of the clients. The section 126 of Victorian Instruments Act,1958 states that an
agreement is only enforceable when it is in written form. The Conveyancer has to document all the
records in written form in order to make them enforceable which is a term of Section 126 of the
Victorian Instruments Act 1958.
17 Can native title be extinguished by the Crown?
Answer –The Naive titles cannot be sold or transferred freely, but they can be extinguished or
surrender to the Crown.
18 How are leases categorised and explain the four types of lease?
Answer —Leases can be categorised as: operating, financial, sales, conveyance, leverage and non
leverage leases, full and non pay out leases and specialised service lease.

The four types of lease are: Absolute net lease: The tenant takes care of all the burden including the insurance,
maintenance and taxes under absolute net lease. Triple net lease: It comes with three expense types such as insurance, real property taxes and
the maintenance associated in it. Modified gross lease: In this type of lease the entire burden is transferred onto the owner of
the property.

Full service lease: It takes care of most or all of the costs of operating a building or property.
19 After you have effected settlement, as a Conveyancer what else is there to do before you close your
clients file?
Answer –Before closing a file, the Conveyancer has to ensure that the transaction has been executed
and completed properly by comparing it or reviewing the contract to the actual protocol procedures
complied.
20 To be enforceable does a contract need to be in writing? Explain fully in your own words.
Answer –Contracts are prepared to protect the rights of the of parties, therefore they should be kept in
writing. But even if a contract is not in writing, it does not make it invalid. However, it can prevent
the enforcement of that contract in the court or legal bodies.
21 Explain the rights and obligations of the mortgagee and the mortgagor
Answer –
The rights and obligations of mortgagee are:
 Right over the same property to protect their interests
 Right to sell the property (mortgagee sale)
 Right to foreclose the property
 The right to lease a property
 The right to sue the debtor And right to take possession of the property.The rights and obligations of the mortgagor:
 Obligation of checking the mortgage instrument after it has been prepared by the mortgagee;s
solicitor.
 Return the mortgage document to mortgagee for further checking
 Obligation to pay mortgagee's costs on mortgage
 A mortgagor is obliged to account the money received to mortgagee on settlement of the
transaction.

22 What is the difference between a mortgage by charge and a mortgage by conveyance? Use an
example in your answer.
Answer –The mortgage by charge refers to the right of mortgagee regarding releasing the debt or
mortgage out of the asset or collateral held as a security. For example Mr A took a loan of 10,00,000
for 7 years from Mr. D by giving his house as mortgage. After 5 years Mr. A fully paid off the rent
and Mr. D returned settled the loan and released the house of Mr. A from mortgage.
However, in mortgage by conveyance means that the transferring the ownership, title and
rights of a property from one party to the another. For example: Mr. A fails to pay off the debt in 7
years so Mr. D sold the house to cover the debts of mortgage.
23 What is an ‘intermediary’, and how are they involved in property purchases/sales?
Answer –The intermediaries help in assisting in the indirect flow of funds through the financial
systems. They act as a middleman in lending. They act as a pool of funds to the lender and transfer the
money to the borrowers. The financial intermediaries act as middlemen in the sale or purchase of the
properties and assist the buyer and the seller in the indirect fund flow. They lend the money to buyer
of a property which will be given to the seller of the property.
24 Three brothers decide to buy an investment property. How should they register their
shares/ownership of the property and why?
Answer –The brothers can register their property on public register through State because the
Parliament of Victoria has enacted that the properties and estates or the interests in land can be
registered on the public register securely which is maintained by the State. They should register their
ownership on public register because the basic effect of the registration is obtaining the immediate
legal title of ownership to the interest registered which means they will get the immediate transfer of
ownership to them.
25 What is the aim of the retail tenancies legislation?
Answer -Retail tenancies legislation's have been introduced by a number of jurisdictions to protect the
tenants in small commercial premises. Retail premises are usually used wholly or partially for
carrying out a business which involve the hiring of goods and services. The aim of this legislation is
to protect tenants.
26 What are the key questions to keep in mind when calling, arranging or attending a meeting of any
sort?
Answer –Following points should be kept in mind when a meeting is called, arranged or attended:
 Why is that meeting happening?
 What goals are to be achieved through this meeting?
 What role does one have in meeting?
 Who else is attending this meeting?
 How can this meeting be made successful?.

27 The rights and duties granted by the lease is evidence that the parties have entered into a binding
lease agreement. Lease contain covenants in the lease agreement relating to the rights and duties of
the parties. Identify the four main covenants usually contained in the lease agreement dealing with the
duties of the parties.
Answer –The four main covenants contained in the lease agreement while dealing with the duties of
the parties involved are:
 The payment of rent and outgoing expenses
 Undertaking of non-structural repair
 Permitting to the lessor entry to inspect and put re-entry on non-payment of rent by the lessee.
 Covenant for enjoyment.
28 What policies and procedures are in place at your organisation to ensure documentation is
reviewed and signed off in accordance with compliance requirements?
Answer -It is very essential to properly review and sign off the documents by the authorised person.
The policies and procedures are in place at my organisation to ensure documentation is reviewed and
signed off in accordance with compliance requirements are: Development of accuracy culture: The organisation ensures documentation is reviewed and
signed off by using checklists and cross-checking regimes which are clear and simple by
cross- reference to practices and policies or requirements. Standard format for documentation: the organisation has developed a standard format or
template and every one is obliged to maintain and create the documents according to that
template.

Printing documents for proof-reading: As many people find it difficult to proof-read the
documents again on the computer screen So, the organisation has created a process in which
documents are printed out, then the formatting checked, then they are read once more and
making necessary changes are made.
Reference:
Books and journals:
Bridge, M. and et.al., 2017.
The law of personal property. Sweet & Maxwell.
Cuming, R.C., 2018. Mortgage Obligation Deficiency Recovery.
Sask. L. Rev. 81. p.113.
Golding, G., 2020. The origins of terms implied by law into English and Australian employment
contracts.
Oxford University Commonwealth Law Journal. 20(1). pp.163-191.

Myking, J.R., 2020. Leasehold and Freehold c. 1200–1750. In
Peasants, Lords, and State: Comparing
Peasant Conditions in Scandinavia and the Eastern Alpine Region, 1000-1750. (pp. 88-120).
Brill.
Radović, M., 2019. The ratio and scope of regulation concerning standard contract terms.
Pravo i
privreda. 57(7-9). pp.332-347.
Rana, A.A., 2020. Essentials of a Valid Contract: A Comparative Study of Islamic Law and the
Contract Act, 1872.
Available at SSRN 3753738.